Oliveira v. State , 751 So. 2d 611 ( 1999 )

751 So. 2d 611 (1999)

Mark Joseph OLIVEIRA, Appellant,
v.
STATE of Florida, Appellee.

Nos. 97-4244, 99-0417.

District Court of Appeal of Florida, Fourth District.

November 24, 1999. Rehearing Denied March 7, 2000.

Richard L. Jorandby, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Gentry Denise Benjamin, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

The Defendant appeals his convictions and sentences for possession of cocaine with intent to sell and battery on a law enforcement officer. We affirm the convictions and sentences in all respects, with the exception that we reverse the sentence for battery on a law enforcement officer and remand for re-sentencing.

The Defendant asserts that the offense enhancement from battery, a first degree misdemeanor, to battery on a law enforcement officer, a third degree felony, in conjunction with a ten-year sentence under the habitual felony offender statute has resulted in improper double enhancement. We agree.

The Florida Supreme Court has recently explained, "[s]ection 784.07 ... is an enhancement statute rather than a statute creating and defining any criminal offense." Merritt v. State, 712 So. 2d 384, 385 (Fla.1998). In the present case, the Defendant's offense was reclassified pursuant to section 784.07(2)(b). In addition, his sentence was enhanced under the habitual felony offender statute. Because section 784.07 is itself an enhancement statute, the Defendant has been subjected to double punishment by also having his sentence enhanced under the habitual offender statute. See, e.g., Gayman v. State, 616 So. 2d 17, 18 (Fla.1993) (stating that defendants cannot receive multiple punishments for the same offense). Accordingly, we affirm all the Defendant's convictions and sentences in all respects, with the exception that we reverse the sentence for battery on a law enforcement officer and remand for re-sentencing.

AFFIRMED in part, REVERSED in part, and REMANDED.

GUNTHER, FARMER and KLEIN, JJ., concur.